The Ethical Dilemma: Gray Areas of Back Door Checks in Recruitment

Alright, let’s get down to brass tacks. You’ve got your prospects, candidates, and applicants, and you’re itching to know who’s really got the goods. Ever thought of a backdoor reference check? Before we go ahead, let’s first iron out what these terms actually mean. After that, we’ll dissect the good, the bad, and the legally murky aspects of backdoor reference checks.

Who’s On First? Understanding Prospects, Candidates, and Applicants

Prospects: Your Fresh Leads

In recruitment lingo, prospects are those individuals you’ve got your eye on but haven’t engaged yet. They’re on your radar, but they don’t know it because you haven’t started any formal recruitment process.

Candidates: Heating Up

Candidates are a step ahead. They’ve shown interest, and you’ve interacted in some way—maybe an initial outreach or a screening call. They’re actively on your list for potential roles.

Applicants: The Real Deal

Applicants have thrown their hat in the ring. They’ve formally applied and are expecting (or should be expecting) to be thoroughly vetted.

Backdoor Reference Checks: A Risk Worth Taking?

The Legal Tightrope

Listen up, because this part is crucial. Legal rules for backdoor checks depend on the status of the individual. For prospects, the field is generally open since you haven’t initiated a formal recruitment process and all you are doing is a personal check in. But when you get to the applicant stage, the rules get strict. Formal checks, backdoor or not, usually require explicit consent.

For Prospects: Fair Game

With prospects, you’re typically okay to go for a backdoor reference check so long as it is not the ‘official’ judgement of the company. Since there’s no formal engagement and the conversation is both exploratory and personal, you’re not bound by the same stringent legal requirements that you’d face with applicants. But don’t go wild—stick to professional boundaries and common sense. People talk to each other to qualify prospects and to learn how to best engage, and this is both commonplace and normal. 

Don’t take a negative response too seriously and look for others who can help you confirm or reject a single person’s opinion. Because that is what it is: an opinion. Just as you qualify sales leads, a backdoor check on a prospect is essentially a stage of discovery, so be professional about your info gathering.

For Candidates and Applicants: Tread Lightly

When you’ve got candidates and especially applicants, the game changes. Conducting a backdoor check on these individuals without explicit consent could get you into hot water. So, the rule of thumb here is: When in doubt, get consent.

In cases where the applicant may not be a ‘slam dunk’ recruiters may want to be open with the candidate and ask them who in the target company may be able to act as an informal reference. I used to do this and trust me, it works. The corporate recruiter and hiring manager will have significantly more confidence in the application when they know someone on their team who they trust has the candidates back. Again, the key is to have consent. 

The Implications for Agency and In-House Recruiters

Let’s be clear, whether you’re an agency or an in-house recruiter, the legal boundaries aren’t drastically different. The big difference? Agency recruiters need to be cautious when sharing information with a third party—the client. In-house recruiters, you might think you’re safe because you’re part of the organization, but don’t be fooled. Candidates have rights and the law applies to you just the same. Check out the the website for a fresh perspective.

Here’s a tale from the trenches: A major global tech company in Japan developed an app like Referable with good intentions. The idea was to help the hiring process, not to sidestep it. But what actually happened? Employees started using the app to perform unofficial back door checks on applicants. It all went south when one applicant got wind of this through a friend in the company and raised a complaint with the Ministry of Labour Health & Welfare. Suddenly, this tech giant was in legal hot water, and it wasn’t because of a software bug—it was an “unintended feature” of their hiring process.

Proactive references give hiring teams confidence – especially when the reference comes from the inside! 

Preempting Fate

We’ve all had those painful interactions with corporate HR who hem and haw over whether to make the offer or not. They don’t feel confident. One of the panel members has their doubts, so consensus is lost. Whatever the reason they come up with they often come back to that old chestnut of presenting another candidate to act as a benchmark. Delays occur and you lose the candidate. 

Hurdling Poor Process

Why does this happen? Because of poor talent acquisition processes. Fault could lie with hiring managers being untrained – yes, I’ve seen a case where it turned out that none of the new management team had ever had interview or talent acquisition training. Fault could also lie with the recruiters. Either way, it is the overall TA function that is accountable to fix the problem. 

But wait! There is a way to get around this pain. If you have proactively worked with the candidate on consensual references – whether external, or at the target company – then it is highly likely you can avoid this misery.

Transparency Wins

Just be transparent with your candidate about why the references help. Proactive references give hiring teams confidence – especially when the reference comes from the inside! For instance, candidates may hesitate to apply to companies where their former colleagues are employed, fearing that the absence of an invitation from those colleagues could signal a likely rejection. Rather than just sending a CV, try sending the CV with a name or two of people the candidate is most confident to support them. Have the candidate reach out privately to warm things up.

Let me add another side tip. A good recruiter should already have pre-empted the ‘benchmark candidate’ objection as well. To make a placement my golden rule was to provide a minimum of three qualified candidates: the benchmark, the silver medalist, and the gold medal champion. 

The Final Countdown

Backdoor reference checks can be a treasure trove of invaluable insights, but they can also be a slippery slope leading to legal challenges. Understanding the difference between a prospect, a candidate, and an applicant can save you not just headaches but potentially a whole lot more.

So, recruiters, the next time you’re pondering a backdoor check, know your boundaries. When you’re dealing with prospects, you’re generally in safer territory as you are dealing with personal opinions and not a judgement on behalf of the company. This is what candidate mapping is largely about – Referable has been designed to help recruiters help the right prospects to become the right applicants to the right roles. 

The be clear, once prospects become candidates or applicants, we must tread carefully. Always, always prioritize consent and legal guidelines. It’s okay to be transparent with the candidate because it is in their favour. Trust me, while it’s better to be safe than sorry, there are opportunities for recruiters to work openly with candidates and applicants to avoid common pitfalls of poor talent acquisition processes.

Disclaimer: The contents of this article are intended for informational purposes only and do not constitute legal advice. Should this article raise questions or concerns about your recruitment practices’ legality or ethics, it’s imperative to consult with a qualified legal professional.

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